Appellate courts have authority to lift own publication bans, says Supreme Court

The Supreme Court of Canada has ruled that courts of appeal have the authority to lift their own publication bans after cases are closed, allowing the CBC to again ask the Manitoba Court of Appeal to lift its ban in an historic wrongful conviction case.

In an 8-1 decision in Canadian Broadcasting Corp. v. Manitoba, the Supreme Court found that although a court cannot rehear a case after rendering its judgment – known as the doctrine of functus officio – the court still has the authority to control access to the court record afterwards. Accordingly, a court may reconsider a publication ban that was made during a case after the case has closed.

“This decision confirms that people affected by publication bans and sealing orders … can go back to the issuing court, if they did not have the opportunity to make submissions in the first place, or if circumstances have changed,” to request access to documents, says Jonathan Kroft, a partner in MLT Aikins LLP in Winnipeg and lead counsel for the appellant Canadian Broadcasting Corporation.

The clarification of the doctrine of functus officio was “a critical point, and one of the main reasons why CBC chose to pursue this particular case,” Kroft told Canadian Lawyer.

The public right to learn about its justice system has long been recognized as a key element of the democratic system in Canada and a core element of freedom of expression, he says, “but unfortunately, ambiguities in our rules of procedure and appeal rights have made it difficult or cost-prohibitive for the public to actually enforce their rights.”

Friday’s decision means that “a complicated and expensive appeal of review proceedings are not the only option for Canadians to defend open justice,” he says.

Background

In May 1987, Stanley Frank Ostrowski was convicted in Manitoba’s Court of Queen’s Bench of first-degree murder in a drug-related shooting death and sentenced to life in prison. In 2009, Ostrowski asked Manitoba’s minister of justice to review his conviction, and was released from prison later that year pending the outcome of the review.

In 2014, the Manitoba Court of Appeal was asked by Manitoba’s minister of justice to decide if there had been a miscarriage of justice at trial. An affidavit filed by Ostrowski’s counsel before the appellate court was made subject to a publication ban pending a decision as to its admissibility as new evidence.

In its November 2018 reasons allowing the appeal on the merits, the Court of Appeal dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. In May 2019 The CBC brought a motion before the Court of Appeal to have the publication ban set aside; it argued that having access to the affidavit would shed light on the criminal matter before the Court of Appeal and the court’s conclusion on the merits that a miscarriage of justice had occurred at trial.

In declining to consider the CBC’s motion, the Court of Appeal cited its rule of practice against rehearings and the doctrine of functus officio, and reasoning that its jurisdiction was exhausted once it had decided the merits of the case and entered its judgment disposing of the appeal. The CBC then applied for and was granted leave to appeal to the Supreme Court from the Court of Appeal’s 2019 decision refusing to reconsider the publication ban, and from its 2018 decision ordering the indefinite publication ban.

Doctrine of functus officio

In today’s judgment the majority of the Supreme Court found that the Manitoba Court of Appeal does have jurisdiction to reconsider the publication ban, and the case was remanded back to that court for a determination of whether the ban should be lifted.

“It is useful to distinguish between jurisdiction over the merits lost by operation of the doctrine of functus officio and jurisdiction that exists to supervise the court record,” wrote Justice Nicholas Kasirer in his reasons for the majority.

“[E]ven when a court has lost jurisdiction over the merits of a matter as a result of having entered its formal judgment, it retains jurisdiction to control its court record with respect to proceedings generally understood to be an ancillary but independent matter.”

As proceedings to consider publication bans or sealing orders don’t affect the substance of a decision, reconsidering them will therefore not address the verdict of a case, and so the doctrine of functus officio does not apply.

When a publication ban can be reconsidered

A court of appeal may reconsider a publication ban in two situations, the court found: 1) if there was a change in circumstances, or 2) if a party affected by the publication ban, such as the media, was not given notice at the time of the ban.

The majority of the Supreme Court found there were no change of circumstances, but that Manitoba’s appellate court must still decide if the CBC’s request meets the second condition. The CBC’s appeal of the publication ban specifically was therefore adjourned sine die.

Dissent

In dissenting reasons, Justice Rosalie Abella found that the CBC failed to ask the Court of Appeal to reconsider the publication ban in a timely manner.

“An unexplained six month delay for filing a motion to have a publication ban reconsidered — even a four month delay, on a charitable interpretation of when the CBC had full and complete notice of the nature of the publication ban — is inordinate,” Justice Abella wrote.

Litigation is ongoing

Counsel for Ostrowski supported the CBC’s appeal.

“As the Supreme Court judgement said, given that Mr. Ostrowski wasn’t acquitted in the Court of Appeal -- only a stay of proceedings was entered, more than 31 years after he’d been jailed -- he’s entitled, in my view, to have the public know what the evidence was that was heard by the Court of Appeal in the challenge to his conviction,” said James Lockyer of Lockyer Campbell Posner LLP in Toronto, who was Ostrowski’s lead counsel before the Supreme Court.

“The Court of Appeal ordered a ban on disclosing important information that could have influenced members of public in their view of the case”

The end of the story is yet to come, says Harvey Strosberg of Strosberg Sasso Sutts LLP in Windsor, Ont., who also represents Ostrowski. After spending more than 22 years behind bars for a conviction that was eventually quashed, Ostrowski is suing the City of Winnipeg, a former Winnipeg police chief, the attorney general of Canada and four Crown lawyers who prosecuted his case. The senior provincial Crown attorney was George Dangerfield, now retired, who was reportedly behind at least three other wrongful convictions in Manitoba. 

Ostrowski’s statement of claim was filed in the Manitoba Court of Queen's Bench in June, and a motion will be heard on Oct. 13 and 14 before Justice Shawn Greenberg, says Strosberg. Justice Greenberg was in the news in February for denying bail to Canadian fashion designer Peter Nygard.

Counsel for the Manitoba Crown was not available for comment.